Just the Facts: More about Placitas Horse Lawsuit

scales_of_justiceThis guest post comes to us from attorney Dave Reynolds, who represents the group of Placitas residents that joined WHOA v. NMLB as “Defendants by Intervention” (a third party with a stake in the outcome and right to be heard), and Carolyn Kennedy, who provided editorial assistance.

First, a little background. WHOA’s lawsuit in the New Mexico courts contends that NMLB has no right to treat Placitas “wild” horses as estray livestock when captured. In July 2014 the District Court ruled the free-roaming Placitas horses are indeed livestock and subject to estray livestock laws and dismissed the case. WHOA appealed the decision, and in August 2015 the Court of Appeals overturned the dismissal (it didn’t agree with the lower court’s reason for dismissal), and kicked the case back to District Court. (Sidebar: In October 2015, NMLB and the Intervenors asked the NM Supreme Court to review the Court of Appeals decision, but the Supreme Court said “not interested”). So, the case is proceeding in District Court and not over yet. However, the August 2015 Court of Appeals’ opinion does impact the status of Placitas horses right now. We’ll let Dave explain.

Summary of NM Court of Appeals Decision and Current Status of the Case, WHOA v. NM Livestock Board

Wild Horse Observers Association (WHOA) has recently published numerous blatant falsehoods about the ruling of the Court of Appeals in WHOA’s case against the NM Livestock Board (NMLB). This is a brief summary of what the Court of Appeals decided; what it did not decide; and the impact of the decision going forward with regard to free-roaming horses in the Placitas area.

By way of background, an appellate court does not, and can not, decide facts—fact finding is something that trial courts do through witness testimony and trial exhibits.  The Court of Appeals decides matters of law, such as interpreting what a statute means, and setting the legal framework for the trial court to apply law to the facts that have been proved to the trial court’s satisfaction. The New Mexico Court of Appeals did not make, and could not make, any determination as to whether the “Placitas horses” as a group, or as individuals, are “wild.” That question is up to a trial court to decide.

What the Court DID decide is that, under New Mexico law, not all horses are necessarily livestock, subject to the estray livestock impoundment procedure. The Court of Appeals ruled that if horses are proven, as a matter of fact based on evidence presented to a trial court, to be unowned and “undomesticated,” they are not livestock. Accordingly, the NMLB would have no jurisdiction over those particular horses, and would not be allowed to impound them for sale under the estray statutes.

The Court of Appeals did NOT rule that “the horses of Placitas are wildlife.” It did not rule that they are “protected wildlife.” It did not rule that “it is not legal to kill/auction NM’s wild horses.” With regard to animal cruelty laws, the Court ruled that while such laws apply to any horse in captivity, they do NOT apply to horses that are not in captivity.

While WHOA trumpets the Court of Appeals decision as a major victory, the legal consequences of the ruling are anything but a victory for free-roaming horses. By virtue of a 1994 New Mexico Attorney General Opinion regarding feral horses on White Sands Missile Range, which Opinion WHOA cited extensively in its Complaint in district court, the legal status of non-livestock horses is that of unregulated, unprotected wildlife, no different than coyotes or pack rats. Moreover, the Attorney General Opinion found that if such horses are captured on private land, they become the property of the landowner on whose land they were captured, and that landowner is free to sell them, keep them, and, yes, kill them. There is no opportunity, as there would be if the horses were found to be “domesticated” livestock subject to the statutory impoundment procedure, for individuals or rescue groups to purchase and adopt them at a livestock impoundment sale. In that regard, WHOA, in “winning” the legal argument that unowned horses are not livestock, actually gave landowners absolute power over unowned horses that they capture on their land. It doesn’t matter if the horses are “Spanish Mustangs”—if they are captured on private land, the landowner owns them.

WHOA did prevail against the livestock board in getting the Court of Appeals to find that the NMLB is the agency tasked by the DNA statute (Sec. 77-18-5 NMSA 1978) to test any non-livestock horses captured on the DNA statute’s narrowly defined “public lands.” However, this amounts to a big “so what?” in the Placitas area, because there is little, if any, “public” land in the Placitas area. Land that is under the control of the BLM, the forest service, and certain state trust land is excluded from the DNA statute’s definition of “public” land.  Even the City of Albuquerque’s Placitas Open Space is not “public” land, because as land the City acquired from the BLM under the Federal Recreational and Public Purposes Act, it remains under the ultimate control of the BLM. That leaves county road right of ways as the only “public” land in the Placitas area that is subject to the DNA statute. As a result, it is hard to conceive of a situation where horses captured anywhere in the Placitas area would have to be DNA tested by the NMLB.

It is important to note that the DNA statute does NOT apply to horses captured on private land, which is where all horse captures in the Placitas area have occurred. It doesn’t matter if they are unowned, undomesticated, free roaming Spanish Mustangs.  If they are captured on private land, they are the property of the landowner.

While the Intervenors and the NMLB asked the New Mexico Supreme Court to issue a writ of certiorari to review the decision of the Court of Appeals, it declined to do so, and, as a result, the Court of Appeals decision stands. The Supreme Court’s denial of certiorari does not make the Court of Appeals decision a Supreme Court decision. It simply means the Supreme Court was not convinced that this was a case of sufficient importance to take up time on the Court’s docket. As a decision of the Court of Appeals, it may be overturned by the Supreme Court at any time in the future.

It would seem that WHOA has won a pyrrhic victory in the Court of Appeals.  They succeeded in removing all legal protections for free-roaming horses captured on private land, and while now the NMLB must DNA test horses captured on “public” land, from a practical standpoint, no such land exists in the Placitas area.

In accordance with the mandate issued by the Court of Appeals after the Supreme Court declined review, the case has been sent back to the district court for further proceedings, if any, that the district court decides are appropriate, given the Court of Appeals ruling. The court may very well find that in light of that ruling, the case should now be dismissed as moot.

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For more about WHOA v. NMLB, see these posts and articles:

7/19/2014: Court Dismisses WHOA Lawsuit

7/21/2014: Judge Rules Placitas Horses Not Wild (Albuquerque Journal)

7/22/2014: Placitas Horse Group May Appeal Judge’s Ruling (Albuquerque Journal)

10/2015. Court Ruling Reshapes Placitas Horse Captures (Sandoval Signpost)

9/6/2015: Appeals Court Creates New Type of Horse

9/7/2015: The New Horse Ruling and the Consequences of Not Being Livestock

10/22/2015: NM Supreme Court Declines to Take Up WHOA v. NMLB

3/18/2016: WHOA Special Edition Spreads Misinformation

“WHOA Special Edition” Spreads Misinformation

pinocchioMany Placitans received in the mail yesterday an 8-page newsletter, “WHOA Special Edition” from Wild Horse Observers Association. The banner headline on page 1 reads, “WHOA Wins vs NMLB in NM Supreme Court.” This is not true. Here are the facts.

WHOA’s Claim: “The New Mexico Supreme Court ruled 4 to 0 against the NMLB…”

The Facts: The WHOA v. NMLB case has not been heard by the NM Supreme Court. Petitions (called petitions for a writ of certiorari) were submitted to the Supreme Court last fall by the defendant (NM Livestock Board) and the 12 Placitas residents who are Defendants by Intervention asking that Court to review an earlier Court of Appeals ruling. The Supreme Court declined to hear the case. Turning a declined petition for a hearing into a 4-0 Supreme Court ruling in WHOA’s favor is a lovely fantasy for WHOA, but didn’t actually happen. As the Supreme Court docket is public information, anyone can verify that this case has never appeared on the Court’s docket.

The Facts: The WHOA v. NMLB suit is still in progress and the outcome pending. The Court of Appeals issued an opinion, overturned the District Court’s dismissal of the case, and sent the case back to District Court for further proceedings. The District Court must take into account the Court of Appeals ruling as it proceeds with the case. In fact, a hearing on the case was held in District Court just yesterday, a hearing attended by WHOA president Patience O’Dowd. So O’Dowd is fully aware the case is still wending its way through the lower court.

WHOA’s Claim: “Wild horses in NM are not livestock as contended by the New Mexico Livestock Board (NMLB). Hence they cannot be treated as trespass livestock on BLM lands.”

The Facts: There was no ruling by either the District Court or the Court of Appeals that the Placitas horses are “wild horses”. The Court of Appeals ruled that a Placitas horse that is proven to be “unowned and undomesticated” is not livestock and therefore is not subject to NMLB estray livestock procedures. It also ruled that NMLB is the appropriate agency to test the DNA of any horse that must have its DNA tested under NM state statute 77-18-5. That’s it. And the Court of Appeals ruling has absolutely no bearing on horses on BLM or other federal lands.

We won’t waste our time countering the rest of the misinformation presented by WHOA. When the case is settled, we’ll provide an accurate summary of the outcome on this blog.

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Full disclosure:  The editors of this blog are among the 12 Placitas residents who joined the “WHOA v. NMLB” lawsuit as Defendants by Intervention in support of NMLB, private property rights and public safety.

NM Supreme Court Declines to Take Up WHOA v. NMLB

scales_of_justiceLast week, the New Mexico Supreme Court declined to hear the Wild Horse Observers Association (WHOA) v. New Mexico Livestock Board (NMLB) case concerning free-roaming horses in Placitas. The state Supreme Court receives dozens of petitions a year and can only take on so many cases, so they choose the most interesting or pressing ones. Placitas horse issues didn’t make the cut.

A District Court judge had dismissed the case back in July 2014 because she didn’t think WHOA’s primary argument — that Placitas free-roaming horses aren’t livestock and shouldn’t be treated as such by NMLB — held water. WHOA appealed the decision. In August, the Court of Appeals weighed in, disagreed with the District Court’s dismissal of the case on the particular grounds that it cited, and sent the case back to District Court.

But first, the NMLB petitioned the Supreme Court in September to review the Court of Appeals ruling. So did the group of Placitas residents that has joined NMLB as defendants in the case.*

Since the Supreme Court isn’t interested in the case, it now goes back to District Court for further proceedings. The judge will look further at the several arguments presented by both sides and ultimately issue a new ruling. This will all take awhile. We’ll keep you posted.

3/17/16 update: WHOA has incorrectly stated that the NM Supreme Court ruled on the case and ruled 4-0 in WHOA’s favor. See our recent post.

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*Disclosure: The editors of this blog, together with other Placitas residents, joined the lawsuit as “defendants by intervention” in support of NMLB and private property rights.

The New Horse Ruling and the Consequences of Not Being Livestock

scales_of_justiceAs mentioned in our first post yesterday, in August the New Mexico Court of Appeals overturned a decision of the New Mexico Second District Court.

By way of background, in February 2014, Wild Horse Observer’s Association (WHOA) filed a lawsuit (WHOA v. NMLB) claiming Placitas free-roaming horses are “wild” and it is unlawful for the New Mexico Livestock Board (NMLB) to treat them as livestock.* The District Court didn’t buy WHOA’s arguments and ruled in July 2014 that all horses are livestock and the Placitas horses are covered by NM livestock statutes.

WHOA appealed the decision. The Court of Appeals, which trumps the lower court, said in its August 2015 ruling that not all horses qualify as livestock, and that horses that are “unowned and undomesticated” are not livestock.

Remember that phrase. It’s a brand new category of horse, with no legal precedent in New Mexico or any other state. The new ruling appears to conflict with several points of established law, so it will be interesting to see how it all shakes out.

WHOA claims the ruling is a victory for them. We’re not so sure.

This is how we see things as a result of the ruling:

  • Unowned, undomesticated horses (this includes most free-roaming horses in the Placitas area) are no longer considered “livestock”. They are not covered by livestock statutes and have lost certain protections. The Livestock Board is no longer responsible for them if they are captured, doesn’t have to post public notices about them, and isn’t required to find a home or sell them at public auction.
  • It appears that unowned, undomesticated horses in New Mexico are now considered wild animals. (Note that they are not “wild horses” as defined in the federal Wild Free-Roaming Horses and Burros Act of 1971, which only concerns certain inventoried herds on federal lands.) And as with other wild, non-game animals, it appears a landowner has the legal authority to capture and control them, as long as any relevant state statutes are followed (see, for example, NM Attorney General’s Opinion 94-06 regarding the wild horses of White Sands Missile Range).
  • So, the ruling does not change the fact that property owners can legally corral a trespassing horse—owned or unowned, wild or tame–on their own property. This action remains legal. The only difference due to the new ruling is that if the captured horse turns out to be “unowned and undomesticated”, NMLB can’t help the property owner by taking the horse off his/her hands via the agency’s estray livestock procedures. The property owner has to assume ownership and responsibility for the horse.

And by the way…

  • A state statute (the so-called “wild horse” statute, 77-18-5 NMSA) requires DNA testing of any unclaimed horse captured on certain public lands in New Mexico. If the test shows the horse is of Spanish Colonial descent, certain procedures have to be followed. However, it doesn’t appear there are any lands in Placitas that meet the statute’s narrow definition of public lands. Arguably, the Placitas Open Space (POS) might meet the definition, but technically the POS is under the ultimate control of BLM, a federal agency, which isn’t subject to the state statute. The POS is fenced and off limits to free-roaming horses, anyway, so it’s a moot point. The wild horse statute, with its DNA testing and other requirements, does not apply to horses captured on private land, and the Court of Appeals ruling does not change this.
  • The ruling does not mean free-roaming horses are now allowed on the Placitas Open Space. The POS is a fenced, protected recreational area managed by the City of Albuquerque under the federal Recreational and Public Purposes Act. Free-roaming horses of any sort are not permitted on the POS and the ruling doesn’t change that.
  • The ruling does not mean free-roaming horses must now be allowed on the BLM Buffalo Tract, either. Management of federal lands is not affected by this state court ruling.

The intent of WHOA’s lawsuit was to stop NMLB from treating Placitas free-roaming horses as estray livestock. WHOA was successful in that regard. A property owner can no longer count on NMLB’s help in finding a home for or auctioning an unowned, undomesticated horse that they have penned and want removed from their land.

Instead, as a result of the court ruling, the property owner can assume ownership of the horse, along with the legal right to keep or sell it. However, anyone who pens a horse on their property must still immediately contact NMLB so the horse’s legal status can be appropriately documented.

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*Full disclosure: The editors of this blog, together with other Placitas residents, were parties to the lawsuit, joining as “defendants by intervention” in support of NMLB.

Disclaimer: We try to exercise due diligence in ensuring information on this blog is accurate. As part of that process, this post was reviewed by an attorney experienced in livestock law. We’re not lawyers and the information provided on this blog should not be construed as legal advice. If you have questions concerning livestock or free-roaming horses, contact the NM Livestock Board and/or consult a qualified attorney.

 

Be Careful What You Wish For

GavelSome free-roaming horse advocates in Placitas are upset right now because they’ve just realized the very real effect of their victory in the NM Court of Appeals (WHOA v. NMLB, see earlier post).

Last Tuesday, a Placitas property owner penned a band of four horses that had been regularly coming onto her property and creating havoc. She called NMLB, which sent an inspector out to officially document that the horses were “unowned and undomesticated” (that’s the odd new category of horses the Court ruling created as a result of WHOA’s lawsuit). The horses were microchipped for future identification purposes, and—courtesy of WHOA’s court victory– the horses now belong to her. She is free to keep or sell them as she sees fit.

In the past, the horses would have had to be publically noticed and auctioned by NMLB, giving free-roaming horse advocates an opportunity to buy the horses, but no longer.

Didn’t WHOA know this would be the result of its poorly thought-out lawsuit? Based on a frantic 911 call placed by WHOA president Patience O’Dowd to report the property owner’s actions and a rambling email sent to Gov. Martinez, the Attorney General, the Mayor of Albuquerque, the Sandoval County Sheriff, and others, O’Dowd apparently thought that, as a result of the new ruling, horses roaming on private land would now be untouchable. It appears O’Dowd doesn’t understand either the limits of the court’s ruling or the unintended consequences of her own lawsuit. We’ll have a post up tomorrow that looks more closely at the Court’s ruling.

Appeals Court Creates New Type of Horse

scales_of_justiceThings have gotten interesting on the Placitas horse front. In a previous post, we covered the New Mexico Second District Court’s July 2014 decision in the case of Wild Horse Observers Association (WHOA) versus the New Mexico Livestock Board (NMLB).* In that ruling, the Court said that the free-roaming horses in Placitas are “livestock” like any other horses and subject to existing state laws regarding estray livestock.

Under the livestock code, property owners who pen trespassing livestock are required to notify the NMLB and use its estray livestock procedures. That agency posts public notices about any estray livestock found, and if the animal is unclaimed, may sell it at public auction.

But that was then, and this is now. In August, The New Mexico Court of Appeals overturned the District Court ruling. It ruled that if a free-roaming horse in Placitas is proved to be “unowned and undomesticated,” that horse would not be considered “livestock”, but would be an “unowned and undomesticated” horse. That’s a brand new, never-before-seen category of critter, legally speaking. By removing their status as livestock, any free-roaming horses in Placitas that are “unowned and undomesticated” (except those on certain public lands) now have the same legal status as jack rabbits and coyotes.

As a result of the Court of Appeals ruling, someone who pens one of these non-livestock, unowned, undomesticated horses on their private property now becomes the owner of the horse as soon as it is captured, under the common law doctrine of property, ratione soli (but does need to notify NMLB and get proper documents). Since the horse is not livestock, NMLB does not, and cannot, post a public notice, take responsibility for the horse, or auction it publicly. That makes life easier for NMLB, but a little harder for the property owner, who no longer has NMLB to help them out. He or she has to take full responsibility for their new horse, either keeping and caring for it or selling or giving it away.

It’s entirely possible the ruling will make it easier for so-called “kill buyers” (people who buy horses in order to sell them for slaughter) to get their hands on horses, so we don’t think WHOA has done the horses any favors with this ruling. In another post, we’ll look more closely at what the new ruling does and doesn’t mean.

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*Disclosure: The editors of this blog, together with other Placitas residents, were parties to the lawsuit, WHOA v. NMLB, joining as intervenors in support of NMLB, private property rights, and public safety.

Disclaimer: We’re not lawyers and the information provided on this blog should not be construed as legal advice. If you have questions concerning livestock or free-roaming horses, contact the NM Livestock Board and/or consult a qualified attorney.

Trio of WHOA Horse Bills Die in Committee

New_Mexico_State_Capitol_east_entranceThree horse-related bills and amendments died in committee at the Roundhouse yesterday. They were crafted by Wild Horse Observers Association (WHOA NM) president Patience O’Dowd and sponsored by Gail Chasey, D-Bernalillo.

In the packed meeting room, opposition to all three bills was strong, with many people from around the state speaking out against them. As the meeting wore on, Rep. Chasey may have realized she’d been railroaded into sponsoring some rather bad pieces of legislation. O’Dowd was chastised a couple of times by Candy Ezzell, Chair of the Agriculture, Water and Wildlife Committee (and a rancher who knows her horses), for making misleading statements.

Number 1HB 410 proposed to prohibit “horse slaughter or transporting horses for slaughter for human consumption.” It also banned the transportation of horse meat for human consumption within New Mexico. A violation of either law would have been a misdemeanor. While meant to strike a blow against horse slaughter in general, the confusing, poorly written bill would have presented significant enforcement issues. A reader who attended the committee hearing writes, “The ranchers and other horse folks at the hearing…noted that anyone hauling a horse through New Mexico would have to ‘prove’ the horse wasn’t [intended] for human consumption.” The vote: 7-1 against. [Note: this paragraph has been revised to correct the original post].

Number 2Currently, horses are legally considered livestock rather than companion animals, and must be treated and cared for according to livestock and animal husbandry laws. Different laws (cruelty-to-animals laws) address the humane treatment of companion animals and pets. HB 411 proposed to amend an existing animal cruelty law to include “equines not classified as food animals.” Changing which section of the law horses fall under, while it sounds simple, would have many repercussions and present significant problems for ranchers, farmers, horse boarders and trainers, producers of horse events, and others who work with horses. Like cruelty-to-animal  laws, livestock laws also provide protection to animals. Groups such as the American Horse Council and other national and state equine organizations are against redefining horses as companion animals, but it’s a complex issue with arguments on both sides.

Regardless, this particular bill was not well thought out. According to the NM Livestock Board (NMLB), “The proposed amendment is difficult to understand and impossible to implement.” The NM Department of Agriculture said it would “cause problems for normal agricultural operations across the state.” The LFC’s Fiscal Impact Report noted that the bill conflicted with existing state and federal laws regarding livestock and presented a number of enforcement issues. And what the heck are “equines not classified as food animals,” anyway? The NMLB wrote, “It incorrectly leads one to believe there is such a classification as a ‘food horse.’ No such classification or definition exists.” The upshot? 7-1 against.

Number 3HB 412 would have required the NM Livestock Board to “identify and monitor animals at the Mexican border that have been rejected for slaughter for human consumption.” By way of background, horses that are transported to Canada or Mexico must appear to be in reasonable health; horses that are obviously ill or decrepit are turned away at the border. However well-intentioned, HB412 was short on specifics and timelines, didn’t define what is meant by “identify and monitor,” and included no funding for the cash-strapped NMLB to carry out the ambiguous tasks. This one failed 8-0.